Currently, Workplace Safety & Insurance Board (WSIB) authorization for medical cannabis is treated on a case-by-case basis; however, it is generally not supported for chronic non-cancer pain. As a result, injured workers with non-cancer pain are often denied benefits and must appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) before medical cannabis might be accepted as an appropriate measure to treat their workplace injury or illness.
A recent WSIAT decision released in February of 2018 discusses the WSIB’s decisions to deny medical cannabis for a worker’s low back pain.1 The Tribunal noted that the WSIB has not developed a specific policy with regards to entitlement for reimbursement of medical cannabis. The Tribunal reviewed previous Tribunal jurisprudence concerning whether workers should be reimbursed for medical cannabis under the WSIB’s insurance plan, and if so, in what circumstances the funding should be provided. The Tribunal concluded that if the following factors are present in a workers application, then the worker should be entitled to funding from the WSIB under section 33 of the Workplace Safety and Insurance Act:
- the worker experiences constant and debilitating pain related to the worker’s work injury;
- the worker’s treating physician has recommended and/or prescribed medical cannabis to treat the worker’s ongoing debilitating pain;
- the worker has obtained from Health Canada the necessary authorization to legally possess medical cannabis with the approval of the worker’s physician;
- other methods of pain control have been tried to address the worker’s pain, but have proven to be less effective or practical than medical cannabis as a method of controlling and treating the worker’s pain; and,
- there are no circumstances which make it inappropriate for the worker to use medical cannabis to treat the worker’s ongoing pain.
In that case, the Tribunal ultimately concluded that the worker was entitled to reimbursement for medical cannabis because such treatment was necessary, appropriate and sufficient as a result of the compensable injury.
The requirement that other methods of pain control have been tried to address the worker’s pain, but have proven to be less effective or practical than medical cannabis may be likely be the target of future appeal as it could be argued to impede on a patient’s right to choose what treatment they will or will not consent to. One alternative to cannabis for treating chronic pain has in the past been opioids and other medications which come with significant costs and risks, including addiction — as a result of which there has been significant pressure in many areas of health care to move away from.
At Lerners LLP, we have experience advising both employers and employees with respect to the use of cannabis at it impacts the workplace. We would be happy to advise you on those issues.
1Decision No. 262/18, 2018 ONWSIAT 434 (CanLII).
