The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to medical cannabis and that he is not entitled to wage loss benefits from January 16, 2019 to March 3, 2019. A file review was held on January 7, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to coverage for medical cannabis; and, Whether or not the worker is entitled to wage loss benefits from January 16, 2019 to March 3, 2019.

Decision

The worker is not entitled to coverage for medical cannabis; and, The worker is not entitled to wage loss benefits from January 16, 2019 to March 3, 2019.

Background

This claim has been the subject of two previous appeals. Please see Appeal Commission Decision Nos. 23/15, dated March 11, 2015 and 137/15, dated December 2, 2015. The background will therefore not be repeated in its entirety.

The worker has an accepted claim for bilateral medial epicondylitis in relation to a workplace accident that occurred on February 10, 2007. Pursuant to Appeal Commission Decision Nos. 23/15 and 137/15, it was determined that the worker's right sided medial epicondylitis had resolved. Permanent restrictions were placed with respect to the worker's left sided medial epicondylitis and medical aid benefits regarding medications were continued.

On December 18, 2018, the worker contacted the WCB to advise that his treating family physician had prescribed medical cannabis to replace three of the medications he had been taking, due to side effects he had been experiencing with the medications. The WCB received a report from the worker's family physician dated December 31, 2018 confirming that the worker had discontinued three of the medications he was taking and was treating his "…left elbow pain…" with medical cannabis. The family physician noted that the worker was "…fully oriented. Acting appropriately. Pt. (patient) denies dizziness and problems with concentration and focus" and that the worker was advised regarding the side effects of medical cannabis.

The worker's WCB case manager contacted him on January 22, 2019 to discuss his claim. The worker advised his case manager that he returned to work on January 16, 2019 after vacation but was advised by his employer that he was "…not allowed on work property while he is taking a narcotic substance." The worker further advised that approximately six months previously he had begun to experience digestive issues and severe nosebleeds that required emergency medical treatment. His family physician indicated to the worker that these symptoms were side effects from the worker's long term use of pain medications and recommended the worker wean off those medications and recommended the use of medical cannabis as an alternative. The worker indicated he trialed the medical cannabis during an upcoming six week vacation. As the worker's family physician completed medical updates for the employer on a regular basis, the employer was advised of the worker being prescribed medical cannabis. The employer advised the worker of a change in their policy, effective January 1, 2019, of zero workforce participation when narcotics are used.

At a February 4, 2019 follow-up appointment with his family physician, it was noted that the worker had been using only the medical cannabis for a one week period and found that his left elbow pain was better managed with the medications he had been taking previously. As a result, the family physician recommended the worker discontinue the use of medical cannabis and a new combination of pain medications was also recommended. At follow-up appointments on February 15, 2019 and March 1, 2019, the worker's treating physician noted the worker's continued improvement with pain management using the recommended combination of pain medications. A note was placed to the worker's file on March 13, 2019 by the worker's WCB case manager indicating that the worker contacted his WCB case manager on February 26, 2019 advising that his employer required him to provide a test to "…demonstrate there was no remaining evidence of medical cannabis in his bloodstream prior to being cleared to return to work." An update was provided on March 6, 2019 from the worker that the test had been completed and he was cleared to return to work, which he did on March 4, 2019. A further file note was also placed on March 13, 2019 by the WCB case manager noting that the worker did not advise his employer that his time loss from January 18, 2019 to March 4, 2019 was related to his compensable injury.

The WCB advised the worker on March 14, 2019 that he was not entitled to wage loss benefits from January 16, 2019 to March 3, 2019 as his loss of earning capacity during that time was not medically accounted for related to his compensable injury. On March 22, 2019, the worker provided the WCB with a copy of a letter from his employer's Occupational Health Nurse, indicating that the employer was aware the worker was placed on a trial medication by his treating physician that deemed him unfit to perform his job duties due to safety issues. The WCB advised the worker on the same date that there would be no change to the March 14, 2019 decision that he was not entitled to wage loss benefits.

On March 25, 2019, the worker requested reconsideration of the WCB's decision to Review Office. In his submission, the worker noted that due to physical side effects from the pain medications he was taking, his family physician recommended a trial of medical cannabis, which was commenced while the worker was on a six week vacation. Upon his return to work, the worker was advised by his employer that due to his safety critical position, his employer could not approve him to return to work. As the medical cannabis was not providing a predictable duration of pain relief, the worker's physician recommended he discontinue the medical cannabis and a return to a different combination of pain medications was started. The worker further advised that his employer required a clean narcotics screening prior to his return to work, which occurred on March 4, 2019. The worker noted that it was due to the ongoing pain symptoms from his compensable injury that he had to take the pain medications and accordingly, it was due to his compensable injury that he trialed the medical cannabis which left him unable to work due to his employer's policy.

On March 27, 2019, Review Office returned the worker's file to the WCB's Compensation Services to address the issue of coverage for cannabinoids. On April 2, 2019, the worker was advised that the WCB was unable to accept financial responsibility for expenses incurred by the worker due to the use of medical cannabis for treatment of his compensable condition. On April 9, 2019, the worker requested that Review Office also reconsider the WCB's decision regarding the denial of cannabinoid coverage.

Review Office determined on May 23, 2019 that the worker was not entitled to wage loss benefits from January 16, 2019 to March 3, 2019. Review Office found that a WCB medical advisor provided an opinion on March 22, 2019 that "There is no reliable evidence in the medical literature that would support that the cannabinoids that [the worker] was using would promote a timely recovery from his workplace injury, or eliminate or minimize the impact of [the worker's] reported left upper limb symptoms." Further, the WCB medical advisor provided that even though the worker had experienced side effects from medications supported by the WCB, the WCB would not have approved the use of medical cannabis as a non-traditional treatment for the worker's symptoms. Accordingly, Review Office determined that as medical cannabis would not have been approved by the WCB for non-traditional treatment of the worker's injury, the worker's loss of earning capacity resulting from taking the medical cannabis was not compensable and the worker was not entitled to wage loss benefits.

The worker filed an appeal with the Appeal Commission on June 10, 2019. A file review was arranged.

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 WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

WCB Policy 44.120.10, Medical Aid (the "Policy"), sets out general principles regarding a worker's entitlement to medical aid. These general principles include:

• The Board is responsible for the supervision and control of medical aid funded under the Act or this policy.

• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury.

• In determining the appropriateness and necessity of medical aid, the Board considers:

o Recommendations from recognized healthcare providers;

o Current scientific evidence about the effectiveness and safety of prescribed/recommended healthcare goods and services;

o Standards developed by the WCB Healthcare Department…

• The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries.

…

• The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

Schedule A to the Policy sets out the general principles regarding the WCB's funding of prescription and non-prescription medications. Schedule A provides that the WCB may refuse or limit the authorization of payment for prescription or non-prescription medications that are considered by the WCB to be inappropriate, ineffective, excessive or harmful, including those that may lead to dependency or addiction. Schedule A further provides that the WCB may refuse or limit the funding of any medications it considers non-traditional, as described in Schedule C to the Policy.

Schedule C to the Policy sets out the general principles regarding the WCB funding of non-traditional treatments. Non-traditional treatments are identified for the purpose of that Schedule as treatments which are "considered experimental" or "lack scientific validity to the extent required for widely-held acceptance in the Manitoba community of recognized health care providers."

Schedule C provides that the WCB does not generally authorize payment of non-traditional treatments. Payment for non-traditional treatments may, however, be authorized on a case-by-case basis when the WCB determines that:

1.) The non-traditional treatment will be used for a medical condition that results from a compensable injury;

2.) Traditional treatments have not been, and will likely not be effective;

3.) The prescribing or recommending health care professional has outlined the number of appointments and treatments required for the non-traditional therapy and the period of time over which the non-traditional treatment is required;

4.) There is sufficient reliable scientific evidence to indicate that the prescribed or recommended, non-traditional treatment will promote a timely recovery and return to work, enable activities of daily living or eliminate or minimize the impacts of the worker's injuries;

5.) There is sufficient reliable scientific evidence to indicate that the non-traditional treatment will be safe over the anticipated duration of which it is being prescribed or recommended;

6.) The side-effects are widely known, well described in the scientific literature, and do not outweigh the potential for benefits in the particular case;

7.) Standards have been developed and are in place for the safe use of the non-traditional treatment; and

8.) The non-traditional treatment can be provided legally in Canada from a regulated source and is recommended or prescribed by a recognized health care provider.

Worker's Position

In the worker's submission to the Commission, he stated the following:

The board is relying on the advice of a single medical advisor who says that there is no evidence that medical cannabis is an effective treatment in my case without examination when my experience demonstrated that this "alternative" treatment gave me excellent relief from pain due to my permanent injury.

A medication change was necessary and urgent due to alarming side effects that had developed from taking past medication long term. Attempting to gain approval from the board prior to the change was not an option as the change was immediately medically necessary. It took the board's medical advisor over 3 months to make a determination that cannabis was not appropriate. It was extreme and prolonged nose bleeds that precipitated the immediately necessary change in medication.

It was the worker's position that since the change in his prescription was determined to be medically necessary by his physician and a result of his compensable injury, he was entitled to WCB coverage for the cost of that medication.

With respect to the issue of wage loss benefit entitlement from January 16 to March 3, 2019, the worker submitted a request to the Review Office that stated that although he commenced taking cannabis while he was on vacation in December 2018, he was not allowed to return to active employment when his vacation concluded as his employer had determined that he could not be approved to work his "safety critical position" if he was taking any amount of any narcotic and that the employer's occupational health nurse informed him that he would not be allowed back to work until he had provided a clean narcotics urinalysis screening.

The worker stated that the employer did not allow him to take this screening until February 28, 2019. When the employer received the urinalysis on March 4, 2019 he was allowed to return to work later that day.

The worker summarized his position on the issue of wage loss to the Review Office as follows:

In conclusion, it is my contention, and [the worker's treating physician] can confirm this, that the change of medication for my compensable injury was medically necessary, and [the employer's] OHS department can confirm that the new medication, cannabis, was the reason for my lost work, and therefore my lost earnings. The loss of earnings is thus directly related to the compensable injury.

Employer's Position

The employer did not provide a submission to the Appeal Commission in advance of the review.

Analysis

Issue 1: Whether or not the worker is entitled to coverage for medical cannabis

The issue before the panel is whether or not the worker is entitled to coverage for 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 an injury resulting from an accident." The panel is unable 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 March 22, 2019, as follows:

With regard to the cannabinoid use in the treatment of pain, cannabinoids have been shown in limited studies to have some efficacy in the treatment of neuropathic pain associated with multiple sclerosis. As [the worker] does not have multiple sclerosis, and the diagnosis of his reported left upper limb pain as neuropathic is questionable (a past neurology consultation that included history, physical examination and nerve conduction studies concluded that [the worker's] left upper limb symptoms were not accounted for on a neurologic basis) the use of cannabinoids in his circumstance would be viewed as not evidence based and therefore represent non-traditional treatment.

The WCB has policy around the provision on non-traditional treatments to workers in the management of workplace injuries. In this regard the following is noted in [the worker's] case.

[The worker] has a longstanding history of depression that pre-existed and was accepted as exacerbated by his February 10, 2007 workplace accident. In trials using cannabinoids in the treatment of neuropathic pain, the subgroup of patients in the trial treated with cannabinoids had a significantly higher dropout rate secondary to psychiatric side effects than those in the placebo group. As such the risk of psychiatric harm in [the worker's] case would not likely have been outweighed by the unknown benefit in terms of pain reduction over the uncertain duration that those cannabinoids may have been utilized.

There is no reliable evidence in the medical literature that would support that the cannabinoids that [the worker] was using would promote a timely recovery from his workplace injury, or eliminate or minimize the impact of [the worker's] reported left upper limb symptoms.

There is no reliable evidence in the medical literature that the cannabinoids [the worker] was using would be safe over the indefinite period for which they may have been utilized or in fact over the period between December 18, 2018 and February 4, 2019.

The side effects of cannabinoid products are not widely known and not well described in the medical literature.

The standardization of the product used by [the worker] is not known.

Reliable standards have not been established for the safe use of cannabinoids in the management of chronic pain, neuropathic or otherwise.

In light of the above, notwithstanding that [the worker] was reportedly using cannabinoids to replace WCB supported medications that had resulted in side effects, WCB Healthcare would not have approved the provision of cannabinoids as a non-traditional treatment in [the worker's] case.

While the panel understands the prescription for cannabis was provided in response to side effects the worker was experiencing with some of the medications he had been using over a long period of time, it is the panel's position that 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 declines to authorize coverage for the worker's medical cannabis. The worker's appeal on this issue is dismissed.

Issue 2: Whether the worker is entitled to wage loss benefits from January 16, 2019 to March 3, 2019

In order for the worker's appeal on the second issue to succeed, the panel must find that he is entitled to wage loss benefits from January 16, 2019 to March 3, 2019. The panel is not able to make that finding for the reasons that follow.

As the panel has previously determined, the worker is not entitled to coverage for medical cannabis.

Since the worker is not entitled to coverage for medical cannabis, it is the panel's position that any time loss related to the use of medical cannabis would also not be covered as the time loss is not the result of the compensable injury.

The worker has acknowledged, and the information on file confirms, that his time loss from work from January 16, 2019 to March 3, 2019 was the direct result of his cannabis usage.

As a result, it is the panel's position that the worker is not entitled to wage loss benefits from January 16, 2019 to March 3, 2019 as that time loss was the result of the worker being prescribed medication for which the WCB did not provide approval.

As a result, the worker's appeal on this issue is dismissed.

Panel Members

M.L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of February, 2020