Canada: Medical Marijuana Loses Its Appeal – The Skinny On Skinner Part 1

Last Updated: May 18 2018
Article by Helen D.K. Friedman

In earlier blogs, we have discussed the curious case of Wayne Skinner and his quest for medical marijuana funding under his union's insurance plan. As you may recall, Mr. Skinner had been injured in an automobile accident in the course of his employment in August of 2010. Following the accident Mr. Skinner reported chronic pain, depression and anxiety refractory to conventional medication. In 2012, he began using medical marijuana which by his account, provided symptom relief. Funding for Mr. Skinner's medical marijuana was recently the subject matter of two decisions of the Court of Appeal for Nova Scotia ("NSCA").

The first decision is Skinner v. Nova Scotia (Workers' Compensation Appeal Tribunal), 2018 NSCA 23, released March 9, 2018. Unfortunately for Mr. Skinner, the NSCA ruled the Workers' Compensation Board ("WCB" or the "Board") was within its rights to deny funding for medical marijuana as a "medical aid" (medical aid includes medication). The initial denial was made by a WCB case manager who applied a Board policy (the "Policy") which requires a medical aid to be "consistent with standards of healthcare practices in Canada". Medical marijuana was found by the case manager to be inconsistent with standards of Canadian healthcare and therefore, in Mr. Skinner's case, unavailable for funding.

Mr. Skinner appealed the case manager's decision to a hearing officer. He was unsuccessful. He then appealed to the Workers' Compensation Appeal Tribunal ("WCAT") and was unsuccessful. The WCAT accepted that:

  1. Skinner's medical marijuana use was causally connected to the workplace accident;
  2. Conventional pain medication was not helpful for Mr. Skinner;
  3. Medical marijuana had been endorsed for treatment of a variety of health problems by certain medical practitioners; and
  4. Medical marijuana is a controlled substance which can be used for medical purposes.

These findings notwithstanding, WCAT found prescription use of medical marijuana was inconsistent with Canadian healthcare standards, specifically:

... "It has not yet reached a standard of being a generally accepted medical practice in Canada such that its prescription or use could be considered consistent with Canadian healthcare standards. Rather, the evidence demonstrates that there are no Canadian healthcare standards in place to govern its therapeutic or medicinal use".

Mr. Skinner appealed the WCAT decision to the NSCA. The NSCA was asked to determine whether the Policy was inconsistent with the Workers' Compensation Act (Nova Scotia) (the "WCA") and whether the Policy unlawfully fettered the Board's discretion.

The NSCA applied a reasonableness standard of review as the issue was not of essential importance to the legal system as a whole, nor was it outside WCAT's specialized area of expertise.

According to the NSCA, the statutory framework of the WCA allowed the Board to fund any medical aid the Board considered necessary or expedient as a result of the injury. By statute, the Board was the sole determinator of the necessity of any medical aid. Specifically, the Board had authority to determine the need for medical aid, the type of medical aid to be provided and the extent to which it was required. The Board set a policy which required the specific course of treatment to be consistent with "standards of healthcare practices in Canada". The scheme of the WCA was to provide secure and efficient no-fault compensation to workers, which was dependent on the Board's fiscal responsibility to maintain the Accident Fund. The legislation allowed the Board to set reasonable limits on compensation for injured workers.

On the issue as to whether or not the Policy fettered the discretion of the WCB, the NSCA found the Policy did not preclude a case-by-case assessment. The Policy did not predetermine the outcome of medical aid determination when medical marijuana was under consideration. Ironically, the NSCA noted three decisions (which post-dated Mr. Skinner's WCAT determination), in which workers were found by WCAT to be entitled to medical marijuana as a medical aid. In all three of those decisions, based on the evidence before them, WCAT found prescribed medical marijuana in relation to the compensable injury was consistent with the standards of healthcare practice in Canada.

These findings in essence confirmed the Policy did not fetter the Board's discretion. That said, those findings did not render WCAT's decision, as it applied to Mr. Skinner, unreasonable. The NSCA noted that the appeal before them (Mr. Skinner's) could only be on a question of law, not on a question of fact. WCAT's decision as to whether medical marijuana was consistent with "standards of healthcare practices in Canada" as it applied to Mr. Skinner was a question of fact, or at best, a question of mixed fact and law for which no appeal was available.

Quite tellingly, the NSCA commented:

"While I may disagree with the decision of the appeal commissioner in this particular case, it is not open for me to interfere."

The decision confirms the jurisdictional limitations of an Appeal Court, specifically the NSCA, but appears to leave the door open for an evidence-based finding by WCAT in favour of medical marijuana funding by the Board. As noted in earlier blogs, the Ontario Workplace Safety and Insurance Appeals Tribunal has outlined principles to be considered in extending funding for medical marijuana in Ontario. Decisions continue to be made on a case-by-case basis, evaluating healthcare benefits 'as may be necessary' as a result of a workplace injury. Unfortunately for Mr. Skinner, however, medical marijuana lost its appeal in this case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Helen D.K. Friedman
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