Decision #157/18 - Type: Workers Compensation
PreambleThe worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the costs of medical cannabis. A hearing was held on October 15, 2018 to consider the worker's appeal.
Whether or not responsibility should be accepted for the costs of medical cannabis.
Responsibility should not be accepted for the costs of medical cannabis.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 82/09, dated July 27, 2009. The background will therefore not be repeated in its entirety.
The worker has an accepted claim and permanent restrictions for an enhancement of degenerative changes at L4-5 of his lower back from a workplace incident on October 3, 2001. Wage loss and medical benefits, in addition to vocational rehabilitation services, have been provided to the worker.
Due to concerns regarding the worker's cognitive functions, the WCB recommended in 2013 that the worker taper off the opioid medications he was taking and that funding for three of the medications would be discontinued. In December 2013, the worker attended at the WCB for a further call-in examination and reported an increase in back pain and stiffness and a decrease in his mobility. As a result, the WCB psychiatric consultant recommended, at the discretion of the worker's treating physician and the worker, that WCB fund one of the following:
1. Abstinence via treatment at a residential setting. He would be in the treatment centre for approximately four weeks with a goal of tapering and discontinuing all opioids. Opioids prescribed after residential treatment would not meet WCB healthcare criteria for funding.
2. Change from (medication) to agonist therapy - (second medication) or (third medication).
3. A tapering dose of opioids…WCB funding would cease after 6 months.
On February 7, 2014, the worker's treating physician disagreed with the decision to end funding for opioid medications and advised the WCB that he was not able to supervise narcotic withdrawal. He was unwilling to convert the patient to an alternate analgesic and the worker could not afford a treatment facility. The WCB psychiatric consultant advised the worker's treating physician on March 3, 2014 that the WCB's funding of the opioid medications would end six months from January 2014 and if other treatment options were pursued, the WCB's responsibility for the cost of the alternate treatment option would be reviewed. In his report dated April 28, 2014, the worker's treating physician advised that the worker decided to taper the opioid medication on his own. In a further report dated April 17, 2016, the worker's treating physician advised that the worker had tapered himself off all narcotic and pain controlling medication and was managing his pain with NSAIDs (non-steroidal anti-inflammatory drugs).
The worker advised the WCB on May 1, 2017 that he had replaced the narcotic and pain controlling medications with medical cannabis and requested that his costs for medical cannabis should be covered. On September 11, 2017, Review Office returned the worker's file to the WCB for further investigation.
On October 13, 2017, the worker was advised by the WCB that as his treating physician was advised in January 2014 that funding for opioid medications would end in six months, funding for medical cannabis would not be accepted.
The worker requested reconsideration of the WCB's decision to Review Office on October 16, 2017. The worker relied on his May 1, 2017 submission that he had replaced the opioid medications with medical cannabis, which was providing him with pain relief. Review Office requested a review of the worker's file by the WCB medical advisor who opined, on December 11, 2017, that the accepted diagnosis on the worker's claim was an "enhancement of degenerative changes at L4-L5." A Guidance Document from the College of Family Physicians of Canada noted that there was no research evidence to support cannabis as a treatment for pain conditions commonly seen such as low back pain. The WCB medical advisor's opinion was shared with the worker on December 11, 2017 who provided a response on January 25, 2018.
Review Office advised the worker on February 5, 2018 that no responsibility will be accepted for the cost of medical cannabis. Review Office relied on the December 11, 2017 opinion of the
WCB medical advisor that the evidence does not support that medical cannabis would provide sufficient enough benefits to balance the risk of harm to the worker.
The worker filed an appeal with the Appeal Commission on April 24, 2018. An oral hearing was arranged.
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.
The WCB has established WCB Board Policy, 44.120.10, Medical Aid, which notes that "the provision of medical aid attempts to minimize the impact of the worker's injury and to enhance as injured worker's recovery to the greatest extent possible." The WCB pays for prescription medications under this policy. "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 was self-represented.
The worker explained that, as a result of his workplace injury, he became addicted to opioids. He later came to a realization that his life had to change and he successfully ended his addiction. He described the actions he took to fight his addiction. The worker credited his use of cannabis for aiding his recovery from his drug addiction. He last used opioids on April 23, 2015.
The worker stated that:
So, anyway, bottom line is, is I decided that I needed the detox, and I took it upon myself, I funded it myself, and I also went about getting my licence from Health Department, or Health Canada for the use of medical cannabis as a painkiller, as well as a sleep aid, and also to stop anxiety. I did get my card. I went through all the hoops that were necessary. I rang the bells, I blew the whistles, I got the receipts, as I am showing you, I have handed them in here, submitted them.
Basically all I'm asking for is the amount of money I'm out of pocket. It's not like I haven't spent it and it hasn't done a damn good thing. Not only am I awake, but I'm on my feet now, too. I can actually walk around. Not all day, of course, mind you, but --I was the guy that loved working. I really did. And when my job, the job that I loved the most was taken away from me, I had, you know, just -- I mean, it's hard to explain. It was almost like getting your legs cut off, so to speak. At any rate.
Regarding his use of cannabis the worker advised:
I've always been a cannabis user. For over 40 years I've used it. I've had a number of medical issues over the years that I've actually used it for. One, primarily, was migraines, I suffered with full visual onsets, I would literally get physically ill. I even ended up in a hospital one time because of one of these severe migraines going on for a number of days.
Later in life, you know, suffering with anxiety and sleep issues, I used it for anxiety and sleep issues as well.
In reply to a question about who initially authorized his use of medical cannabis, the worker advised that his family physician did not support his use of cannabis and does not authorize his prescriptions.
In reply to a question about which physician suggested replacing the opioids with cannabis, the worker replied:
Oh, well, no doctor in particular told me specifically, but there's enough information out there.
As noted in the background information, the worker's accident occurred in 2001. The file documents the worker's successful struggle, in recent years, to overcome addiction to opioid medications. The panel commends the worker for his success in this difficult challenge.
The issue before the panel is whether or not the responsibility should be accepted for the costs of the worker's medical cannabis. In order for the worker's appeal to succeed, the panel must be satisfied that the medication is necessary to cure and provide relief from the injury resulting from an accident. We are not able to make this finding.
In the panel's opinion, the medical information is not sufficient, on a balance of probabilities, to establish that the use of medical cannabis to relieve from the effects of the worker's compensable injury is an appropriate treatment. In reaching this decision, the panel accepts the opinion of the WCB Medical Advisor - Pain Management Unit set out in a memo dated December 11, 2017, as follows:
The pertinent information on file has been reviewed. With regards to Cannabis in order for its use to be eligible for WCB financial support its use must be evidence informed and the risk/benefits ratio for it must be considered to be favorable.
In order to articulate a risk/benefit ratio it is necessary to review the Medical Literature in order to determine if there is sufficient evidence based on robustly designed studies in which the test subjects would form a cohort of the claimant yielding high quality results that would give rise to high grade recommendations for the use of Cannabis in a case such as this. Review of the Medical Literature reveals that there is not sufficient evidence and therefore the use of Cannabis in a case such as this would not be evidence informed.
The Guidance Document from the College of Family Physicians of Canada entitled "Authorizing Dried Cannabis for Chronic Non-Cancer Pain and Anxiety" (September 2014), Recommendation 1. Notes that "There is no research evidence to support the authorization of dried cannabis as a treatment for pain conditions commonly seen in primary care, such as fibromyalgia or low back pain." Based on the information on file the diagnosis accepted as compensable is "enhancement of degenerative changes at L4-L5."
As the use of Cannabis in this case would not be evidence informed therefore the risk/benefits ratio that is considered to be not favourable. As the use of Cannabis in this case has a risk/benefits ration that is considered to be not favourable therefore the use of Cannabis in this case is not eligible for WCB financial support."
The panel notes that recently, February 2018, the Canadian Family Physician journal has published guidelines for prescribing cannabinoids. [See Clinical Practice Guidelines - Simplified guidelines for prescribing medical cannabinoids in primary care (Canadian Family Physician Vol 64)]. The panel discussed this journal article with the worker at the hearing.
The guidelines provide:
- We recommend against the use of medical cannabinoids for most medical conditions owing to lack of evidence of benefits and known harms (strong recommendation)…
Management of Pain
- Acute pain: We strongly recommend against use of medical cannabinoids for acute pain owing to evidence of no benefits and known harms (strong recommendation)…
- Headache: We recommend against use of medical cannabinoids for headaches owing to lack of evidence and known harms (strong recommendation)
The panel understands there is some support for the use of this medication for relief of nerve and other pain; however, there is not sufficient evidence, at this time, to support its use in the worker's case. The available evidence does not demonstrate, on a balance of probabilities, that the use of medical cannabis will aid in the recovery of the worker's injury or minimize the impact of the injury.
The panel notes that worker's reference to research conducted on the issue of cannabis use and his specific reference to research conducted in Israel. However, no information or research of a reliable standard was provided to support the worker's position.
The panel declines to authorize payment for the worker's medical cannabis. The worker's appeal is dismissed.
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 15th day of November, 2018