The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision made by the Manitoba Compensation for Victims of Crime program (the "Program") which denied financial responsibility for medical cannabis. An oral hearing was held on January 23, 2018 to consider the claimant's appeal.

Issue

Whether or not financial responsibility should be accepted for medical cannabis.

Decision

That financial responsibility should not be accepted for medical cannabis.

Background

The claimant sustained injuries as a result of an assault that occurred on December 19, 2010.

The claimant filed an application for compensation with the Program on June 28, 2011. Her application was approved and payment of benefits commenced.

On July 28, 2016, the claimant requested that the Program provide financial support for the use of cannabis to treat her post-traumatic stress disorder ("PTSD") relating to the assault. The file was referred to Healthcare Services for a medical opinion, and on November 21, 2016, the medical advisor opined that there was a lack of sufficient quality medical evidence to support the use of cannabis in such a case. On November 23, 2016, the Program advised the claimant, based on the opinion of the medical advisor, that financial support for the use of cannabis in relation to PTSD would not be covered.

On November 30, 2016, the claimant requested that the Program reconsider its decision. On January 19, 2017, the Acting Executive Director of the Program upheld the decision to deny financial support for medical cannabis in relation to the claimant's diagnosed PTSD. On January 26, 2017, the claimant appealed that decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional information prior to discussing the case further. Requested information was received and was forwarded to the interested parties for comment. On October 15, 2018, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The claimant is seeking reimbursement for expenses incurred for medical cannabis as a result of her PTSD.

Section 47 of The Victims' Bill of Rights (the "Act") outlines the types of compensation which are payable to injured victims and states, in part, as follows:

Compensation to injured victims

47 A victim who is injured as a result of an incident described in subsection

46(1) is entitled, in accordance with the regulations, to the following:

(a) reimbursement for expenses prescribed by regulation that were incurred as a result of the injury…

Section 11 of the Victims' Rights Regulation (the "Regulation") identifies classes of expenses for which reimbursement or compensation may be payable. Subsection 11.1(1) addresses compensation for medical and dental expenses, and provides as follows:

Compensation for medical and dental treatment

11.1(1) The director may pay compensation in accordance with this section for medical and dental expenses that are:

(a) required as a direct result of the victim's injury; and

(b) necessary to return the victim to his or her pre-incident condition or address a disability or continuing pain resulting from the injury.

Subsection 11.1(2) of the Regulation goes on to state:

Coverage and limits

11.1(2) Compensation may be paid for the following:

(a) ambulance expenses;

(b) cosmetic surgery;

(c) dental services, in accordance with the current Manitoba Dental Association Fee Guide;

(d) disability, mobility or communication aids, prosthetics or specialized medical equipment or supplies;

(e) prescription drug expenses;

(f) occupational therapy services;

(g) physiotherapy services;

(h) chiropractic services, to a maximum of $500 per year;

(i) massage therapy or acupuncture, to a maximum of $350 per year.

Claimant's Position

The claimant was represented by legal counsel who provided a written submission in advance of the hearing and made an oral submission to the panel. The claimant and her legal counsel responded to questions from the panel.

It was noted that the claimant is seeking funding for medical cannabis which has been prescribed by her physician to treat PTSD she has been diagnosed with and suffers from as a result of a horrific crime that was committed against her. The claimant's position is that the Program was wrong when it decided that she was not entitled to reimbursement for these expenses, and that the Program was not entitled to be wrong. In the alternative, it was submitted that the Program's decision was unreasonable, as it did not fall within the range of possible acceptable outcomes which were defensible in respect of the facts and law. In any event, and regardless of whether the decision was wrong or unreasonable, the claimant was asking that the decision be set aside, and that retroactive and ongoing reimbursement of her medical cannabis expenses be granted.

Legal counsel referred to the background facts as set out in the claimant's Affidavit sworn January 15, 2018 and filed in advance of the hearing. Counsel noted that given the claimant was not obtaining appropriate relief from her medications, her physician prescribed medical cannabis to treat her PTSD. That was in May 2015, or close to five years after the assault and after she had tried the gambit of traditional medications which had been prescribed. The claimant had never been prescribed medical cannabis before.

It was submitted that in order to obtain medical cannabis, the claimant was required to go through the rigorous approval process which was mandated by Health Canada. She successfully completed that process with the assistance of her physician, as she was required to provide evidence that this was a prescribed drug therapy, and is considered eligible to receive medical cannabis for the treatment of her PTSD. In accordance with the approval through Health Canada, she has a licensed producer who provides her with the cannabis she uses.

In terms of the claimant's experience with medical cannabis, it was noted that the claimant feels that she experiences near immediate relief of the symptoms of her PTSD when using medical cannabis and is able to function at a greater level. It was submitted that the claimant's family physician approves of the claimant's ongoing use of medical cannabis, as evidenced by his continued prescription of that drug for her. In an October 2016 report, her treating physician indicated that medical cannabis had improved the claimant's life considerably by relieving severe symptoms of PTSD, that she would not likely be able to return to work without medical cannabis use, and that the relief provided to the claimant by the medical cannabis had not been replicated by the use of other treatments or drugs. One year later, in his October 22, 2017 report, the treating physician indicated that every medication the claimant had previously tried had no lasting benefit, with the exception of the medical cannabis, which has provided relief for her symptoms, and that no other medication had provided this type of relief with so little side effects.

It was submitted that the claimant's treating psychologist also supports the claimant's continued use of medical cannabis. In a December 21, 2017 report, the psychologist noted that the claimant had reported improved ability to function with her medical cannabis. The psychologist noted that this is consistent with her experience with other patients suffering from PTSD whom she had observed to have considerable improvement in their condition when using medical cannabis.

Counsel noted that subsequent to being prescribed medical cannabis, the claimant applied to the Program to be reimbursed for the costs of this drug, which is a fairly expensive product. The claimant indicated that she had no private insurance or other coverage for this treatment and was requesting reimbursement from the Program as a last resort. Relying on the opinion of the medical advisor, the Program denied her request.

Counsel commented that the medical advisor, who had never treated or assessed the claimant, indicated that for medication to be eligible for financial support, it must be both evidence informed and have a favourable risk/benefit ratio. The Program subsequently affirmed its decision to deny funding, based on a further opinion from the medical advisor, which included an assessment of the fact that medical cannabis is not a Health Canada approved therapeutic product.

With respect to the Victims' Rights legislation itself, counsel submitted that the purpose of the Act, as exemplified by its preamble, is essentially to protect and provide assistance to victims of crime. The applicable section of the Act in terms of whether or not to provide funding for medical cannabis is section 47, and the only question under that section is whether the expenses in question are in accordance with the regulations. The test which must be met in order for a victim of crime to be entitled to compensation for medical expenses is set out in section 11.1 of the Regulation, and is essentially twofold: the medical expense must be required as a direct result of the victim's injury; and the medication or medical expense must be necessary to return the victim to her pre-incident condition or to address a disability or continuing pain resulting from the injury.

It was submitted that both components of that test are clearly met in this case. With respect to the first component, that the medication must be required as a direct result of the injury, both the claimant's family physician and her treating psychologist have reported that the claimant has been prescribed medical cannabis specifically to treat symptoms arising as a result of her PTSD. It has not been prescribed for any other purpose. There is also no doubt that the PTSD which the claimant suffers from is a direct result of the crime which was committed against her in 2010.

With respect to the second component of the test, that the medication is necessary to return the victim to her pre-incident condition or to address an ongoing disability resulting from the injury, it was noted that the claimant has been prescribed medical cannabis to treat the symptoms that she suffers on a daily basis as a result of her PTSD. The PTSD has resulted in a disability. The claimant's family physician and her treating psychologist have both reported that the symptoms which she suffers in connection with her PTSD are significantly relieved by the use of the medical cannabis. The claimant herself also reports ongoing symptom relief through the use of medical cannabis. The medical cannabis is therefore being used to address the disability that the claimant suffers as a result of the assault.

In terms of the types of expenses that will be covered, it was submitted that subsection 11.1(2) of the Regulation indicates that compensation will be provided for prescription drug expenses. Counsel noted that the term prescription drug is not defined in the legislation, and submitted that in accordance with the common law rules of statutory interpretation, that term should be read in its entire context, in its grammatical and ordinary sense, harmoniously with the scheme and the object of the Act and the intention of the legislature. In the claimant's view, the ordinary and general meaning of "prescription drugs" is simply a drug that requires a prescription. It was submitted that the medical cannabis that has been prescribed to the claimant by her family physician is no doubt a prescription drug, as that term is used in the regulations, and this type of drug ought to be permitted to be reimbursed for victims of crime as provided in the regulations.

Counsel submitted that the Program's decision to deny compensation for medical cannabis is wrong, or alternatively unreasonable, for three reasons. First, while recognizing that the Program has a discretion as to whether it will approve certain expenses under the legislation, the Program fettered its discretion by taking into account inappropriate and irrelevant considerations. It was submitted that the Program effectively denied funding on the basis that the claimant's medical cannabis use was not evidence informed and the risk/benefit ratio was therefore not favourable. That test, which was articulated by the medical advisor and apparently accepted by the Program, is not found anywhere in the Act or Regulation. In the claimant's view, the legislation does not give the Program the power to inquire into or determine the suitability of any specific prescription drug prescribed by a physician to an individual under the Program.

Similarly, the medical advisor's reference to policies of the College of Physicians and Surgeons of Manitoba, the fact that medical cannabis is not a Health Canada approved drug and the medical advisor's opinion as to the efficacy of medical cannabis are irrelevant, and do not relieve the Program of its obligation to provide reimbursement to the claimant where the test in section 11.1 of the Regulation is met, i.e., where the drug has been prescribed.

It was submitted that once these irrelevant considerations are taken out of the equation, all that is left is the evidence of the claimant's family physician and her treating psychologist, and the claimant's own reports as to her need for the prescribed medical cannabis and the relief it provides to her.

Secondly, it was submitted that the decision is wrong and/or unreasonable because it uses policies that are contrary to the proper statutory interpretation of the Regulation. Counsel noted that there is an indication on the file that the Program uses the same policies and procedures that Healthcare Services uses for Workers Compensation Board ("WCB") clients. It was submitted that to the extent that the program relied upon WCB policies or procedures in denying the claimant's request for reimbursement of medical cannabis expenses, this was inappropriate and their reliance on such policies was contrary to the spirit and intent of the legislation and to section 11.1 itself.

Thirdly, it was submitted that the decision not to provide reimbursement or funding for the claimant's cannabis expenses was discriminatory on the basis of her disability. Counsel noted that there is nothing in the legislation that specifically prohibits the use of medical cannabis or reimbursement of medical expenses related to its use. It was submitted that the world is changing in terms of the use of cannabis, both recreationally and in a medical capacity. Case law indicates that individuals should not be treated differently or deprived of the right to use medical cannabis in various forms. There is also case law which indicates that from an insurance or compensation perspective, the failure to provide equal access to and equal right to compensation of medical cannabis coverage can constitute discrimination of the basis of a disability. In response to questions from the panel, counsel clarified that their position with respect to this point was simply that when interpreting the legislation, and whether or not this is an approved expense under the Regulation, the legislation should be considered from a human rights perspective.

Counsel submitted that any one of these reasons could be accepted as the basis for granting the relief which the claimant is seeking. Counsel also urged the panel to consider the totality of these reasons as showing why the decision was both wrong and not in accordance with the wording, or the spirit and intent and purpose of the legislation, and unreasonable, in the sense that it does not fall within a range of possible acceptable outcomes that are defensible when considered in light of the unrefuted medical evidence and the policies and purpose of the legislation.

Analysis

The issue before the panel is whether or not financial responsibility should be accepted for medical cannabis. For the claimant's appeal to be successful, the panel must find, on a balance of probabilities, that medical cannabis is required as a direct result of the claimant's injury and is necessary to return her to her pre-incident condition or address a disability resulting from the injury. Based on a careful review and consideration of all of the information on file, the evidence and submissions as presented at the hearing, and information and submissions provided to the panel following the hearing, the panel is unable to make these findings.

The claimant has an approved claim for compensation as a result of an assault that occurred on December 19, 2010. The claimant has been diagnosed with PTSD in relation to that assault, and is seeking compensation for medical cannabis expenses to treat her PTSD.

Compensation for prescription drug expenses is provided for under subsections 11.1(1) and 11.1(2)(e) of the Regulation. The panel notes, as indicated by counsel for the claimant, that the term "prescription drug expenses" is not defined in the Act or the Regulation. For the purposes of this decision, the panel is prepared to accept, without deciding, that medical cannabis can be considered to fall within the category of "prescription drug expenses" in subsection 11.1(2)(e) of the Regulation.

Information on file shows that following receipt of the claimant's request for reimbursement of her medical cannabis expenses, the claimant's file was referred to a medical advisor to consider whether the cost of medical marijuana should be covered for the claimant. The panel finds that this approach was consistent with procedures as set out in the Program's policy relating to "Prescription Drug Expenses and Over-the-Counter (OTC) Purchases," which states that "If there is uncertainty regarding the nature of a medication and the relation to the victim's injury, the case manager will request the advice of a medical advisor," and was appropriate in the circumstances.

In his November 21, 2016 response, the medical advisor opined that there was a lack of evidence from quality studies supporting the use of cannabis in a case such as this. The panel accepts the opinion of the medical advisor in this regard, which was not refuted by the claimant. The panel notes that counsel for the claimant stated at the hearing that they had no basis to disagree with the medical advisor's statement as to the state of the literature in the community. The panel further notes that in a May 6, 2018 letter written in response to an inquiry from claimant's counsel, the claimant's family physician commented that "Physicians have been slow to incorporate the use of marijuana in the treatment of PTSD secondary to the lack of clinical studies. The studies are pending."

Counsel for the claimant submitted at the hearing that regardless of the state of the medical literature and studies that have been conducted, there is clear evidence that medical cannabis is effective in the claimant's particular case. Counsel noted that in addition to the claimant's own evidence in this regard, the claimant's family physician and treating psychologist have both said that medical cannabis works and is appropriate treatment in her case. The treating psychologist has also commented that she has observed improvements in the condition of other patients when they were using cannabis.

The panel finds, however, that there is a lack of clinical evidence to support the need for or effectiveness of medical cannabis for treating the claimant's PTSD symptoms.

The panel finds that the evidence indicates the request for medical cannabis was initiated by the claimant herself, as opposed to its having been proposed or recommended by her family physician. Information on file and at the hearing confirmed that the claimant had been using cannabis for her symptoms prior to its being authorized or prescribed by her family physician.

Medical information on file and medical information provided in advance of the hearing consists of letter reports from the claimant's family physician and her treating psychologist. Information on file shows that early in the process, the medical advisor had asked that a copy of the family physician's chart notes documenting the claimant's visits to his office "in regard strictly to PTSD from the date of the first prescription of marijuana until August 31, 2016" be provided. The claimant would not release the contents of her medical chart, and suggested that if there were questions specific to the claimant's PTSD, they could be forwarded to her physician to be addressed. In response to a similar request from the panel for such chart notes, the claimant advised that she would not consent to their release. In the circumstances, the claimant was advised that while the panel remained of the view that the chart notes were relevant in order to fully consider this matter, the panel would respect her refusal to consent to their release.

The panel finds that the medical evidence on file is largely based on information as reported by the claimant herself, as opposed to clinical findings. In his August 10, 2016 report, the family physician thus stated that the claimant "reports an increased ability to manage some of her PTSD symptoms since she has been prescribed this medication." In a December 21, 2017 report prepared for the claimant on her appeal, the treating psychologist, when specifically asked by counsel for her opinion as to the efficacy of medical cannabis use related to the symptom relief and changes in function for the claimant, stated only that "Reportedly, her ability to function in her daily life improves when she doses with medical marijuana in that it reduces her anxiety substantially and she is able to complete household chores and care for her children."

The panel further finds that there are significant inconsistencies in the medical information which is before us, including inconsistencies with respect to the claimant's functionality, or ability to function with or without medical cannabis. In his report of October 23, 2016, for example, the family physician noted that "since starting the medical marijuana, she was able to control her symptoms of post-traumatic stress disorder and return to work" and that "without marijuana use, she would not be able to return to work." The evidence shows, however, that the claimant had already returned to work in or around September 2013, well before she was reportedly using cannabis. She continued to work through to August 2016, when she suffered an aggravation at work, and she was still off work at the date of the hearing.

The family physician also stated in his October 23, 2016 report that cannabis "has improved her life considerably by relieving the severe symptoms of post-traumatic stress disorder." On the other hand, in his report of October 22, 2017, the family physician reported that the claimant's "prognosis is poor, it has been six years and her condition has only gotten worse. Her disability will continue and I see no resolution in her condition."

In reviewing the medical documents registered with the licensed producer, copies of which were provided subsequent to the hearing, the panel further notes that the daily quantity of cannabis that was authorized by the family physician increased from one gram/day in 2015, to 2 grams/day in 2016, to 5 grams/day in 2017 and 2018. Although the panel requested an explanation from the family physician as to how or why the authorized levels had changed, and how such a need was determined, no such explanation was provided.

The panel also notes that while the family physician indicated in October 2017 that the claimant's prognosis was poor and her condition permanent, the treating psychologist stated in her letter of December 21, 2017 that the claimant's "limitation/restrictions are not permanent" and "Her prognosis for recovery is good if she attends regular therapy appointment and she is compliant with all aspects of therapy…"

The panel further notes that the family physician stated in his May 27, 2018 letter that the claimant's treatment had included "the full range of psychiatric and psychological interventions," which would again seem to be inconsistent with the reference by the treating psychologist in her December 21, 2017 report to further and/or ongoing treatment, her statement that the claimant's prognosis for recovery is good if she attends regular therapy appointments and is compliant with all aspects of therapy, and her recommendation of further treatment.

Based on our review of the evidence, the panel is unable to accept that the claimant's use of medical cannabis has resulted in any significant or meaningful improvement in her quality of life. The panel finds that the information on file in general does not support that the claimant's use of medical cannabis has resulted in any sustained improvement.

The claimant has also submitted and relied upon an assertion that her family physician has been extensively involved in the process of monitoring and advising her with respect to her use of medical cannabis. The panel finds that that submission is not supported by the evidence. The panel has previously found that it was the claimant herself who initially identified and sought out approval for medical cannabis to treat her PTSD symptoms. In response to questions from the panel following the hearing, the family physician indicated on May 27, 2018, that once he has given the authorization for medical cannabis, he allows the patient to find the right strain themselves and that the claimant did not need any assistance from him in this regard. He also indicated that the claimant has no difficulty stopping use of the cannabis during times when she cannot afford it which, in the panel's view, would seem to suggest that cannabis is not necessary.

The treating physician further stated that the claimant visited him every one to two months to follow up on her PTSD symptoms, "and to check for other conditions that can mimic PTSD for which there are prescription based treatments." The panel notes that this is not consistent with the family physician's October 23, 2016 report in which he listed the dates of his visits with the claimant with respect to PTSD, amounting to two visits in 2014, six visits in 2015 and two visits in 2016, or a total of ten visits in three years.

At various points, the claimant has referred to and relied on the "rigorous application process mandated by Health Canada to obtain approval of the use of medical cannabis." The panel is unable to accept that characterization of the process. The claimant indicated at the hearing that she is required under federal regulations to go through the approval process annually, which involves an annual medical review with her family physician. Following the hearing, the panel requested and was provided with copies of the medical documents which had been registered with the claimant's licensed producer in order for her to obtain medical cannabis. The panel notes that a relatively minimal amount of information is required and set out in those single-page documents. The panel further notes that while the daily quantity of cannabis is stated, the diagnosis or reason the cannabis is being authorized is said to be optional and is not indicated.

The claimant also referred to Health Canada having approved her application as supporting her claim for compensation. The panel notes that this assertion was addressed by the medical advisor on January 4, 2017, where he referred to a Health Canada document entitled Information for Healthcare Professionals: Cannabis (marihuana, marijuana) and the cannabinoid, where it was noted, in part, that "Cannabis is not an approved therapeutic product and the provision of this information should not be interpreted as an endorsement of the use of this product, or cannabis generally, by Health Canada."

The panel accepts that the claimant's family physician is of the view that the claimant's ongoing use of medical cannabis should be supported. The panel is unable to accept, however, based on the evidence which is before us, that the claimant's use of medical cannabis in relation to PTSD satisfies the requirements for compensation under the Act and Regulation.

In the result, the panel finds, on a balance of probabilities, that medical cannabis is not required as a direct result of the claimant's injury or necessary to return her to her pre-incident condition or address a disability resulting from the injury. The panel further finds that financial responsibility should not be accepted for medical cannabis.

The claimant's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of November, 2018